Supreme Court Wars, Then and Now

When you live long enough, everything seems to come around again. I was a young guy, early in my career, when Richard Nixon was elected to the presidency in 1968. It’s hard to believe that was 40 years ago. If you think history is just a bunch of musty old dates, read on.

Although some commentators pine for the “good old days” of sweet, collegial harmony in the World’s Greatest Deliberative Body, the historical record is somewhat different. Supreme Court wars, for instance, are nothing new. They can play rough in the Senate. Mr. Nixon learned this the hard way, early in his first term. And President Lyndon Johnson – who had been a powerful Senate leader in his day – learned the same lesson at the end of his presidency, as we shall show in paragraphs following.

As a young congressman in the late 1940s, Richard Nixon had annoyed Democrats by assisting in the “outing” of Communist Party members – mostly Democrats – in the State Department and other federal agencies. His enthusiastic work on the House Un-American Activities Committee, during the “red scare” of the late 1940s and ‘50s, offended left-leaning Dems, who thought of Communists as “fellow travelers” on the socialist path they hoped to fashion for our country.

When Mr. Nixon defeated the too-liberal Hubert Humphrey for the presidency – following the chaotic campaign of 1968, during which both Marin Luther King, Jr., and Senator Robert F. Kenney were assassinated – Democrats were not amused. They were determined to show the new kid who was boss in town.

Mr. Nixon’s first nominee to the Supreme Court was Warren Burger. He easily sailed through confirmation to take the seat of retiring Chief Justice Earl Warren. This deceptively benign dénouement closed a rancorous chapter in the early Supreme Court wars. Earl Warren’s resignation “announcement” came in the summer of 1968, as Lyndon B. Johnson’s presidency was ending. (Even at the time I wondered if the Chief Justice wanted Mr. Johnson to make a retiring liberal appointment to the Court.) In his resignation letter, Chief Justice Warren wrote that he would resign “at the president’s pleasure.” President Johnson replied that he would accept the resignation upon finding a “qualified” replacement for the Chief Justice.

This indefinite “resignation” rankled both senators and influential media organs. A more definitive letter of resignation was demanded. Senator Sam Ervin even questioned if the chief justice planned to step down at all, should a liberal enough replacement not be found. Some charged that the chief justice was trying to keep Mr. Nixon from naming his replacement.

Mr. Warren denied the charge, but there was no doubt that animosity between him and Mr. Nixon had existed since 1946, when Mr. Warren – then governor of California – had declined to endorse Mr. Nixon’s congressional candidacy. The schism deepened in 1952, when the governor believed Mr. Nixon had undermined his candidacy for the presidency. General Eisenhower was ultimately nominated, with Richard Nixon as his vice president. (Are you following this so far?)

Amid charges and counter-charges over the chief justice’s peculiar announcement, President Johnson named Associate Justice Abe Fortas for chief justice. The Fortas-nomination quickly hit rough water, when it was revealed that Justice Fortas was actually LBJ’s “political mole” on the Supreme Court. In one of the more remarkable intrigues in the Court’s history, Mr. Johnson asked Associate Justice Arthur Goldberg to resign, in 1965, so he could appoint him as ambassador to the United Nations. (Try to imagine this happening today!) LBJ’s real objective, however, was to put his long-time friend, Abe Fortas, on the Court to be his “eyes and ears.” LBJ wanted early warning of possible Court rulings that might affect any of his Great Society programs. It was disclosed to the Senate that the president conferred frequently with Justice Fortas on these and other political matters that might touch the Court.

In addition, questions arose, during the chief justice hearings, over Mr. Fortas’ acceptance of a $15,000 speaking fee – a very large sum exceeding 40% of an associate justice’s salary at the time – payment of which came from business interests related to some forty different companies. Senators called this a conflict of interest, as those companies might obtain special favor, should they eventually stand before Chief Justice Fortas in court.

The Fortas hearings thus became exceedingly contentious, resulting in a bi-partisan filibuster that successfully denied the candidate a vote by the full Senate. Despite strenuous arm-twisting by President Johnson, the final vote to end debate was 45-43 – far short of the 59 needed for cloture. The following day, Justice Fortas asked the president to withdraw his nomination for Chief Justice. He and the Chief Justice Warren both remained on the court into 1969.

Justice Fortas soon resigned, however, under a credible threat of impeachment by the Senate, after it was disclosed that he had agreed to accept a $20,000-a-year lifetime payment from a foundation set up by Louis E. Wolfson – a businessman later convicted and sentenced to prison for selling unregistered stock. Mr. Fortas is the only Supreme Court justice in history to resign under threat of impeachment. (Good old days of collegial harmony, eh?)

This is where Warren Burger came in. President Nixon nominated him for chief justice as soon as he took office, and Judge Burger sailed through Senate confirmation. But Mr. Nixon did not fare as well with his next two nominations – both for the seat of Justice Fortas. Clement Haynsworth, a respectable, courtly lawyer and experienced judge from South Carolina, was the first. Judge Haynsworth was a fifth-generation lawyer and judge of the Piedmont South. His 300+ opinions were, by all accounts, thoughtful and well written. He was a Harvard Law School graduate, respected by colleagues and litigants alike. Mr. Nixon nominated him to try to bring some regional balance to a court that seemed heavily tipped to the liberal northern states of the country. (Sound familiar.)

However, a coalition of labor unions and civil rights organizations fought the Haynsworth nomination because they perceived the judge as anti-labor and an opponent of black civil rights. After rancorous hearings in which the judge’s business dealings were called into question – apparently without credible basis in fact – the Senate rejected his nomination, 55-45. Richard Nixon complained that his prerogative to appoint qualified judges of his own choosing had been “usurped” by the Senate. (Even more familiar?)

In the wake of the Haynsworth debacle, Mr. Nixon nominated G. Harold Carswell – another southerner with strict constructionist leanings – for the Fortas seat. Only recently appointed to the Fifth Circuit Court of Appeals, Judge Carswell was viewed as a surprise appointment lacking in distinction. Legal beagles criticized his nomination, but others tried to sell Judge Carswell's rather unremarkable career as an asset. In a now-famous speech, Republican Sen. Roman Hruska of Nebraska argued: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that.” (Does history repeat itself, or what?)

What finally sank Judge Carswell, however, was disclosure of a statement he had made in a 1948 run for the Georgia legislature: “I yield to no man as a fellow candidate or as a fellow citizen in the firm, vigorous belief in the principles of White Supremacy, and I shall always be so governed.”

It was also revealed that Judge Carswell had helped convert a public golf course in Florida to a private one, in order to keep it segregated. In the incendiary civil rights climate of the time – closely following the King assassination – the lingering stink of racism was intolerable. The Carswell nomination was defeated by a vote of 51-45.

Subsequently, Mr. Nixon nominated Harry Blackmun, whom the Senate confirmed without incident. Justice Blackmun is best known for being the author of the 1973 Roe v. Wade decision on abortion. He steadily drifted to the left during his career on the court, retiring in 1994. His replacement was Stephen Breyer, nominated by President Clinton.

Since those times, Supreme Court nominations and hearings have become ever more urgent and contentious, as the public has gradually awakened to the broad, unchecked powers the Court has assumed to itself. Of the two parties, Democrats have played much tougher on Court nominations than Republicans. In 1987, Ronald Reagan’s nomination of Robert Bork was attacked, trashed, and ultimately shot down by a Democrat-controlled Senate. Opponents ran radio ads which depicted Judge Bork as a cross between The Grand Inquisitor and the Lord High Executioner. (It would have been a burlesque, except that senators took the charges seriously.)

The vicious campaign against Judge Bork has become the Democrats’ model for assassinating the life and character of a Supreme Court nominee whose judicial attitudes and record are disliked by their constituent groups. In fact, the practice has now taken on Judge Bork’s own name – i.e., to “bork” = to assassinate and vilify a candidate in order to discredit him and block his confirmation for high office.

The “borking” model came to full flower during the confirmation hearings of Clarence Thomas, who was nominated for the Supreme Court in 1991 by President Bush (41). Although a fully qualified black candidate with an impeccable record of public service, Judge Thomas was violently opposed by a coalition of liberal interests, primarily because he was conservative in his political views – particularly with respect to his opposition to racial affirmative action programs.

Critics charged that Judge Thomas had benefited from those same affirmative programs, but wanted to “pull the ladder up” after himself – thereby slyly implying that he couldn’t have achieved high office on his own ability. Others denounced him as not “authentically black.” (In an amazing feat of legerdemain, those same critics ignored the fact that the programs they had created made it nearly impossible for an able black person to “prove” that he had the ability to succeed on his own.)

In the Colosseum-like atmosphere of the Thomas hearings, Anita Hill, a former subordinate, also brought unsubstantiated charges of sexual harassment – the bete noire of the early 1990s. Miss Hill claimed that Judge Thomas had made sexual innuendos and advances to her while she worked for him. These charges were found to be not credible, having been brought forward only long after the claimed time of the incidents’ occurrence. Nevertheless, they muddied the confirmation waters by smearing the candidate.

Judge Thomas showed strong mettle during the hearings, however – at one point standing to denounce the proceedings as a “high tech lynching.” His dramatic statement to the presiding senators shocked some and shamed others. Democrats did not attempt to filibuster the vote. Justice Thomas was confirmed, 52-48, in October 1991.

Although Republicans – then holding a majority in the Senate – were unenthusiastic about Clinton-nominees Stephen Breyer and Ruth Bader Ginzburg in the mid-1990s, they made no move to oppose either one in other than perfunctory ways. This showed either a lack of GOP stomach for the kind of rough treatment Democrats gave to Robert Bork and Clarence Thomas, or else a more principled belief that the president is entitled to appoint justices of his own choosing – assuming that they are fully qualified in a judicial or legal sense. (This principle has never seemed to trouble Democrats.)

Democrats tried to mount attacks on Bush (43) nominees John Roberts and Samuel Alito, but neither attempt gained any political traction due to the exemplary records of both men. Judge Roberts was confirmed as Chief Justice – replacing William Rehnquist, who had died in office – by a vote of 78-22 in September 2005.

After an abortive nomination of White House Counsel Harriet Miers to Justice Sandra Day O’Connor’s seat, President Bush nominated Samuel Alito. Attempts to paint him as a racist failed to gain credibility, and partisan efforts to filibuster his confirmation vote were blocked by a bi-partisan Senate-coalition. Justice Alito was confirmed in January 2006 by a vote of 58-42. (This is the second-lowest confirmation-margin of any serving justice, Justice Thomas’s margin of 52-48 being the lowest.)

Afforded the opportunity to appoint a new Supreme Court justice early in his first term, President Obama has nominated Judge Sonia Sotomayor, an experienced lower-court judge of Hispanic origin, to replace Justice David Souter. In his announcement of the nomination, Mr. Obama strongly touted Judge Sotomayor’s ethnic origins as her special qualification for the high court. He said little about her professional record. This was probably a wise move on Mr. Obama’s part, as the judge’s career – while lengthy – is not distinguished. Indeed, of her rulings later appealed to the Supreme Court, 60% were overturned.

Critics of her nomination have seized on Judge Sotomayor’s apparent claims of superiority for Hispanic women, as summarized in this signature statement, made by her on numerous occasions:

“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Both radio commentator Rush Limbaugh and ex-Speaker of the House Newt Gingrich called Judge Sotomayor a “racist” on account of that statement (although Mr. Gingrich later retracted it for reasons he did not disclose). Her allies have been left to defend the indefensible – an overtly racist statement made publicly by a Supreme Court nominee. (c.f. Harold Carswell’s “white supremacy” declaration, above.)

To underscore the “racist” matter, the Supreme Court recently announced a reversal of the 2nd Circuit Court of Appeals’ decision on the New Haven Firefighters’ discrimination suit. The town of New Haven, Connecticut, had canceled all firefighter promotions and discarded the promotion test after no black firefighters managed to pass it. Judge Sotomayor voted with the 2nd Circuit majority, which ruled in favor of the town’s action. The Supreme Court, however, overturned the 2nd Circuit ruling and found for the white firefighters on basis of racial discrimination.

In her recent confirmation hearings, Judge Sotomayor has repeatedly disavowed her own statements, saying they were “misunderstood” or were part of a “rhetorical flourish that fell flat.” Critics point out, however, that she made the same “rhetorical flourish” on at least six public-speaking occasions, rendering the claim of being misunderstood not credible. Some have noted that no white male candidate who made a similar statement, with the races and genders reversed, could possibly be confirmed.

Judge Sotomayor has also attempted to deflect charges that she does not accept a “personal” right to bear arms, as stated in the Constitution’s Second Amendment, by claiming that she has relatives who hunt and belong to the NRA. She left the central question about the “personal right” unanswered, however.

Cowed by the Hispanic political “bomb” that could detonate if they oppose Judge Sotomayor too vigorously, Republican senators seem disinclined to press her very hard or to mount a filibuster to block her confirmation vote. Thus, the first overtly racist Supreme Court nominee in decades is almost certain to be confirmed. If Harold Carswell were living, he would be rightly outraged by the double standard. Whether he is spinning in his grave – who can say?

Yogi Berra liked to say, “The more things change, the more they stay the same.” Looks like he was right.